United States Court of Appeals,
Fifth Circuit.
No. 94-60337
Summary Calendar.
George WICKS, Sr., Plaintiff-Appellee,
v.
MISSISSIPPI STATE EMPLOYMENT SERVICES, et al., Defendants,
Hazel Cook, Defendant-Appellant.
Jan. 6, 1995.
Appeal from the United States District Court for the Northern
District of Mississippi.
Before POLITZ, Chief Judge, KING and STEWART, Circuit Judges.
POLITZ, Chief Judge:
Hazel Cook appeals the district court's denial of a protective
order preventing all discovery prior to consideration of her motion
to dismiss. For the reasons assigned, we reverse and remand for
further proceedings consistent herewith.
Background
George Wicks, Sr., an African-American male, applied for a
management position with his employer, the Mississippi State
Employment Service. The promotion was given to a white employee.
Wicks filed suit against MSES and Hazel Cook, a former supervisor
of Wicks, asserting both a racial discrimination claim1 and a first
amendment claim.2 On April 13, 1994 Cook contemporaneously filed
1
42 U.S.C. § 1981 (Supp. III 1991).
2
42 U.S.C. § 1983 (1988). Wicks also asserted a claim under
Title VII of the Civil Rights Act of 1964 against the MSES. That
1
two motions: (1) a "Motion to Dismiss, or in the Alternative, for
Summary Judgment," which asserted the defense of qualified
immunity3 and (2) a "Motion to Hold Discovery in Abeyance" pending
the consideration of Cook's qualified immunity defense.
With the motion to dismiss pending before the district court,
the discovery motion was referred to a magistrate judge who issued
an order staying all discovery except for that related to Cook's
defense of qualified immunity. Cook objected to this limited
discovery order and the district court affirmed the magistrate
judge.
Cook appeals the order allowing discovery on the issue of
qualified immunity. The motion to dismiss remains pending before
the district court.
Analysis
Wicks vigorously maintains that we are without subject matter
jurisdiction to hear this appeal of a discovery order.
"Ordinarily, an order compelling limited discovery is interlocutory
and not appealable under the final judgment rule...."4 The Supreme
claim is not at issue in this appeal.
3
"Although the statutory language of § 1983 does not
expressly provide for an immunity defense, courts have
consistently held that "government officials are entitled to some
form of immunity from suits for damages. As recognized at common
law, public officers require this protection to shield them from
undue interference with their duties and from potentially
disabling threats of liability.' " Geter v. Fortenberry (Geter
I), 849 F.2d 1550, 1552 (5th Cir.1988) (citing Harlow v.
Fitzgerald, 457 U.S. 800, 806, 102 S.Ct. 2727, 2731, 73 L.Ed.2d
396 (1982)).
4
Lion Boulos v. Wilson, 834 F.2d 504, 506 (5th Cir.1987)
(citing 28 U.S.C. § 1291 (1986)).
2
Court has held, however, that orders denying substantial claims of
qualified immunity are immediately appealable under the collateral
order doctrine.5 Cook equally vigorously contends that in allowing
limited discovery on the issue of qualified immunity, the district
court effectively has denied her the benefits of the qualified
immunity defense, the most relevant being the protection from
pretrial discovery.6 Thus, she argues, the district court's order
is appealable immediately under the collateral order doctrine and
this court has appellate jurisdiction. We hold today that the
discovery order denied Cook the benefits of the qualified immunity
defense, thereby vesting this court with the requisite jurisdiction
to review the discovery order.7
In Lion Boulos v. Wilson, we held that a party asserting the
defense of qualified immunity is not immune from all discovery,
only that which is "avoidable or overly broad."8 We stated that
when the district court "is unable to rule on the immunity defense
without further clarification of the facts" and when the discovery
order is "narrowly tailored to uncover only those facts needed to
rule on the immunity claim," an order allowing such limited
discovery is neither avoidable nor overly broad.9 Under those
5
Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86
L.Ed.2d 411 (1985).
6
Helton v. Clements, 787 F.2d 1016 (5th Cir.1986).
7
Mitchell.
8
834 F.2d at 507.
9
Id. at 507-08. The Lion Boulos court noted that when the
assertion of the qualified immunity defense turned purely on a
3
conditions, we held that the appellate court was without
jurisdiction to review the discovery order.
Discovery under Lion Boulos, however, must not proceed until
the district court first finds that the plaintiff's pleadings
assert facts which, if true, would overcome the defense of
qualified immunity.10 This heightened pleading requirement, first
articulated in Elliott v. Perez,11 requires Wicks to allege the
question of law, the district court should rule on the motion to
dismiss without discovery. Id. at 508. The same would be true
if the facts upon which the defense of qualified immunity turned
were not disputed by the parties. See Anderson v. Creighton, 483
U.S. 635, 646 n. 6, 107 S.Ct. 3034, 3042 n. 6, 97 L.Ed.2d 523
(1987) ("[I]f the actions Anderson claims he took are different
from those the Creightons allege ... then discovery may be
necessary before Anderson's motion for summary judgment on
qualified immunity grounds can be resolved.").
10
Foster v. City of Lake Jackson, 28 F.3d 425, 428 (5th
Cir.1994) ("The burden of negating the defense lies with the
plaintiffs."); Geter I, 849 F.2d at 1554 ("Where a plaintiff's
pleadings assert facts which, if proven, would defeat a qualified
immunity defense, limited discovery may be permitted tailored to
the issue of qualified immunity."); Lion Boulos (citing Elliott
v. Perez, 751 F.2d 1472 (5th Cir.1985)); Brown v. Texas A & M
Univ., 804 F.2d 327, 333 (5th Cir.1986) ("[T]he issue of
qualified immunity is a threshold question, and "[u]ntil this
threshold immunity question is resolved, discovery should not be
allowed.' ") (citing Harlow, 457 U.S. at 817, 102 S.Ct. at 2738
(1982)). See also Jacquez v. Procunier, 801 F.2d 789 (5th
Cir.1986).
11
751 F.2d 1472 (5th Cir.1985 (citing Leatherman v. Tarrant
County Narcotics Unit, --- U.S. ----, 113 S.Ct. 1160, 122 L.Ed.2d
517 (1993)), Wicks contends that the heightened pleading standard
cannot be reconciled with the concept of notice pleading set
forth in the Federal Rules of Civil Procedure. We note, however,
that the Leatherman decision expressly refrained from considering
"whether [its] ... qualified immunity jurisprudence would require
a heightened pleading in cases involving individual government
officials." Id. at ----, 113 S.Ct. at 1162. In the absence of
such a ruling, we are bound to follow the decisions of prior
panels which have required plaintiffs to meet the heightened
standard. Schultea v. Wood, 27 F.3d 1112 (5th Cir.1994), reh'g
en banc granted (Aug. 26, 1994). See also Branch v. Tunnell, 14
4
particular facts forming the basis of his claim, including those
preventing Cook from successfully maintaining a qualified immunity
defense. To overcome the immunity defense, the complaint must
allege facts that, if proven, would demonstrate that Cook violated
clearly established statutory or constitutional rights.12
Heightened pleading demands more than bald allegations and
conclusionary statements.13 Wicks must allege facts specifically
focusing on the conduct of Cook which caused his injury.14
If Wicks' complaint falls short of this standard, the
district court should rule on the motion to dismiss before any
discovery is allowed.15 The allowance of discovery without this
threshold showing is immediately appealable as a denial of the true
measure of protection of qualified immunity.16 If the complaint
F.3d 449 (9th Cir.) (holding that a panel is bound by prior
panel's adoption of heightened pleading because Leatherman did
not undermine that precedent), cert. denied, --- U.S. ----, 114
S.Ct. 2704, 129 L.Ed.2d 832 (1994).
12
Jacquez (citing Harlow).
13
Streetman v. Jordan, 918 F.2d 555 (5th Cir.1990).
14
Jacquez.
15
See Geter I, 849 F.2d at 1554 ("Where a plaintiff's
pleadings assert facts which, if proven, would defeat a qualified
immunity defense, limited discovery may be permitted tailored to
the issue of qualified immunity."); Geter v. Fortenberry (Geter
II), 882 F.2d 167 (5th Cir.1989) (accord).
16
In its decisions in Harlow and Mitchell, the Supreme Court
made clear that immunity means more than just immunity from
liability; it means immunity from the burdens of defending a
suit, including the burdens of pretrial discovery. Thus, "courts
have an obligation to carefully scrutinize a plaintiff's claim
before subjecting public officials to the burdens of broad
reaching discovery." Jacquez, 801 F.2d at 791. The failure to
do so is immediately appealable under Mitchell.
5
alleges facts to overcome the defense of qualified immunity, the
district court may then proceed under Lion Boulos to allow the
discovery necessary to clarify those facts upon which the immunity
defense turns.17
Thus, the initial step in our review requires an examination
of Wicks' complaint to see if his allegations negate Cook's defense
of qualified immunity. In so doing, we find two allegations
against Cook. First, Wicks complains that Cook violated his first
amendment rights by discriminating against him because of his
protests of two reprimands issued by Cook. His complaint states:
[T]he fact that Plaintiff [Wicks] had exercised his First
Amendment rights by appealing and protesting two unjustified
write-ups given him by the Defendant, Hazel Cook, Plaintiff's
supervisor, also contributed to the failure to get the
promotion. Hazel Cook contributed to Plaintiff's failure to
get the promotion because she entertains a hostility toward
Plaintiff because of his protesting the unjustified write-ups
that she had given him.
. . . . .
[H]er adverse comments about Plaintiff, ... based upon
Plaintiff's protesting unjustified employment actions against
him was [sic] also a proximate cause of Plaintiff's not
getting the promotion.
Our decisions have established that a public employee asserting a
first amendment claim against his employer must show that the
speech in question involves a matter of public concern, that his
interest in commenting upon those matters is greater than the
defendant's interest in promoting efficiency in delivery of public
services, and that his speech motivated the defendant's offensive
17
Lion Boulos; Geter I.
6
acts.18
Wicks' allegations fail to suggest how Cook violated his
clearly-established first amendment rights. The most expansive
reading of his complaint discloses no basis for a finding that his
charges about poor "write-ups" are a matter of public concern.
Moreover, the allegation that his speech motivated Cook's tortious
acts is wholly conclusionary. Nor did Wicks allege exactly what he
believes Cook did to prevent his promotion.19 The gravamen of
Wicks' complaint appears to be nothing more than an attempt to
redress a personal grievance, a claim not generally actionable
against a public employer.20
Wicks also complains that Cook discriminated against him on
the basis of race,21 stating in his complaint that:
18
Thompson v. City of Starkville, 901 F.2d 456 (5th
Cir.1990).
19
Wicks argues in brief that Cook "poisoned the well" by
making adverse verbal comments and by making "unjustified and
unsubstantiated negative written reports" while his supervisor.
Whereas these arguments may be more specific, we may not consider
them because they do not appear in the pleadings, the focal point
of the inquiry under Elliott.
20
Thompson, 901 F.2d at 461 ("The rationale behind the
public concern requirement is to prevent public employees from
relying on the Constitution for redress of personal grievances.")
(citing Connick v. Myers, 461 U.S. 138, 149, 103 S.Ct. 1684,
1691, 75 L.Ed.2d 708 (1983)).
21
We note that Wicks brings this claim under 42 U.S.C. §
1981. Racial discrimination claims under this section also are
subject to the defense of qualified immunity. See Saunders v.
Bush, 15 F.3d 64 (5th Cir.1994) (barring section 1981 claim due
to absolute and qualified immunity of defendants). Although the
heightened pleading standard enunciated in Elliott has been
applied only in the context of section 1983 claims, the rationale
of that decision applies to all civil rights actions where the
defense of qualified immunity is asserted. An immunity from suit
7
Hazel Cook customarily and habitually treated black employees
in a less favorable fashion than white employees, and her
adverse comments about Plaintiff, based upon race and based
upon Plaintiff's protesting unjustified employment actions
against him, was also a proximate cause of Plaintiff's not
getting the promotion.
Again, Wicks makes only broad and wholly conclusional allegations
that Cook discriminated against him on the basis of race. While
Wicks does allege racial animus, an element of the prima facie case
for his discrimination claim, he fails to allege any conduct of
Cook that could be considered to "violate a clearly established
statutory ... right."22 At best, Wicks states the conclusion that
his race is the cause of any adverse comments Cook may have made.
Wicks must allege particular facts showing behavior by Cook
motivated by racial animus. To merely make the charge is
insufficient; the complaint must "state with factual detail and
particularity the basis for the claim which necessarily includes
why the defendant-official cannot successfully maintain the defense
does not vary with the statutory basis for that suit, and as we
said in Elliott:
[W]e conclude that allowing broadly-worded complaints,
such as those of the plaintiffs here, which leaves to
traditional pretrial depositions, interrogatories, and
requests for admission the development of the real
facts underlying the claim, effectively eviscerates
important functions and protections of official
immunity.
22
See Jatoi v. Hurst-Euless-Bedford Hosp. Auth., 807 F.2d
1214, 1219 (5th Cir.1987), cert. denied, 484 U.S. 1010, 108 S.Ct.
709, 98 L.Ed.2d 660 (1988) (holding that section 1981 claim
requires direct or circumstantial evidence of purposeful
discrimination).
751 F.2d at 1476. Thus, Wicks must meet the heightened
pleading standard for his section 1981 claim as well as his
section 1983 claim.
8
of immunity."23 Wicks' complaint is devoid of such detail;
accordingly, we conclude that Wicks has failed to state a racial
discrimination claim sufficient to overcome Cook's defense of
qualified immunity.
Because we find that Wicks failed to meet the threshold
pleading requirements for either of his claims, we hold that any
discovery by Wicks, even that limited in scope, is improper and
immediately appealable as a denial of the benefits of the qualified
immunity defense. Because of this disposition of the discovery
issue, we need not address whether the immunity defense
sufficiently turned on a factual issue requiring discovery under
Lion Boulos. Moreover, we need not address Cook's contention that
the discovery order was overly broad.
We are aware that by requiring heightened pleading before
discovery some plaintiffs will be unable to state a claim. But, as
noted in the concurring opinion in Elliott, the "denial of some
meritorious claims is the direct product of the immunity doctrine
which weighed these losses when it struck the policy balance."24
The seeming unfairness of this conclusion is tempered by this
circuit's directives to allow a plaintiff initially failing to
state a claim the opportunity to amend or supplement the pleadings
freely, so that he may state his best case.25 Where the plaintiff
has filed only one pleading, as Wicks has here, immediate dismissal
23
Elliott, 751 F.2d at 1473.
24
Id. at 1483.
25
Jacquez.
9
ordinarily is not justified.26 Thus, on remand, Wicks should be
given an opportunity to plead his case properly before dismissal is
considered.
The denial of Cook's request for a protective order
preventing all discovery until consideration of the motion to
dismiss is REVERSED and the request is GRANTED. We REMAND to the
district court for consideration of the motion to dismiss in a
manner consistent herewith.27
26
Id. at 792.
27
Cook asks this court to hold that a motion to dismiss must
be considered prior to the allowance of any discovery. We
disagree. While we hold today that Lion Boulos requires a
preliminary consideration of the pleadings prior to the allowance
of discovery on the issue of qualified immunity, this inquiry
need not result in a ruling on a motion to dismiss. Indeed, Lion
Boulos illustrates a situation where a plaintiff satisfies the
heightened pleading but alleges facts upon which the immunity
defense turns which are disputed by the defendant. In such a
situation, Lion Boulos held that discovery limited to the issue
of the immunity defense could proceed "before ruling on a
defendant's motion to dismiss...." 834 F.2d at 507. Thus, we
impose no requirement that the district court must rule on a
motion to dismiss prior to the allowance of discovery in all
situations. Rather, we hold simply that if the pleadings fail to
state facts sufficient to overcome the defense of qualified
immunity, then limited discovery is improper and dismissal, as
qualified above, is in order.
10